Introduction
Bigamy means marrying a second spouse when the marriage with the first spouse has not been dissolved. [1.] While society incurs various costs due to bigamy, the most immediate impact is faced by both wives. This cost is accompanied by society’s reproval for their husband’s ‘immoral’ actions. While the first wife is entitled to succession rights, Indian law is silent on the rights that should be provided to the second wife. This makes one rethink the legal rights that should be provided to the second wife in the form of financial help.
Through this piece, the author attempts to understand the succession and the maintenance rights of the second wife. The author argues that the second wife should be given maintenance but no succession rights. To this effect, this piece would, first, explain the loopholes in the law to show the existence of bigamy when there exists a law to the contrary. Second, the piece argues against the succession rights to the second wife to prevent bigamy and provide financial help through the provision of maintenance. This argument would be substantiated by understanding the costs of bigamy to the immediate stakeholders and the difference in the nature of maintenance and succession rights.
Understanding Bigamy Under the Hindu Law
Bigamy was first introduced as a criminal offence by the Indian Penal Code, 1860 (‘IPC’). However, this was in contravention of the Hindu personal customs that allowed men to marry any number of wives that they can ‘afford’. [2.] During the codification of the Hindu Marriage Act (‘HMA’), the second marriage was again declared null and void u/s 11. However, even after the passing of these two laws, Hindu men continued to circumvent bigamy. This fact was statistically proved by The Status of Women Report, 1975 where Hindu men had 5.8% polygamous marriages in comparison to 5.7% polygamous marriages among Muslim. Resultantly, this raises the question of the existing flaws in the law, one of which the author argues remains unresolved.
Loopholes to Prevent Bigamy
The first loophole was the difference between the Hindu and Muslim law. Muslim men are allowed to be married up to four times. [3.] This resulted in Hindu men’s conversion to Islam for marrying a second wife after solemnising their first marriage as per Hindu laws. This ensured that the second marriage could not be declared void under Hindu law since it would be governed by Muslim law. However, the Supreme Court (‘SC’) took cognisance of this practice in the Sarla Mudgal case. In this case, the Court declared the second marriage to be void because the man converted to Islam to legitimise the marriage. However, one of the major criticisms of the case is that it failed to provide any rights to the second wife.
The second loophole through which men have continued to evade the offence of bigamy was by proving that the ‘essential ceremonies’ have not been performed as per Hindu law. Through the interpretation of Section 7 of HMA, the courts in Bhaurao Shankar case have explained that fulfillment of the essential ceremonies would be important for both first and even second marriage, otherwise leading to no marriage. Resultantly, with no marriage, bigamy would not be committed in law because the essential ceremonies never took place. Further, it is difficult to prove these ceremonies because these marriages were usually not celebrated with pomp and publicity.
To solve this problem, the author argues that in cases where essential ceremonies could not be proved but it can be shown that the couple has been living together for a considerable time, the courts should believe in the presumption of marriage. Once the marriage is proven, then the courts can declare such a marriage void. Recently, the SC applied this legal fiction in the Kattukandi Edathil case. In this case, a woman was living with a man as a married couple and had a child from the marriage. After the death of the couple, the defendants denied any right to the child to the ancestral property as the child was born out of wedlock. However, the court held that even when the marriage could not be ascertained in factum, the courts would look at the period for which the couple have been living together. Moreover, society viewed them as a married couple. Consequently, in this case, the couple was assumed to be married. This presumption made u/s 114 of the Indian Evidence Act could only be rebutted if some evidence is shown to the contrary by the defendants. While the courts have applied such a presumption in the case of live-in relationships, the same has not been applied in second marriages. It is in this light that it is submitted that the presumption of marriage should also be applied in bigamous marriages.
To understand the reasons, it would be important to highlight the difference between a void and no marriage. In the latter, the spouses are neither entitled to legal recognition nor additional rights. However, in a void marriage, while there is no legal recognition of the marriage, there are certain additional rights provided to the parties. Firstly, the children born from a void marriage would be considered legitimate u/s 16 of the HMA. Secondly, the wife would be entitled to maintenance u/s 25 of HMA. It is for this reason that even when the essential ceremonies cannot be proved, the Court, through evidence, should assume the marriage to be legal and declare it void. This proposition was supported by the Malimath Committee report for the protection of women.
Through this analysis, it is concluded that even with a law prohibiting bigamy, the second marriages have continued to flourish. In case where the essential ceremonies are not performed, it jeopardises the rights of the second wife as no marriage is considered. This leads us to the question on what rights should be given to the second wife to improvise her conditions.
Should the Second Wife be Entitled to Rights vis-à-vis the First Wife
As explained above, HMA considers the children from the second marriage as legitimate which makes them eligible for succession because the court prefers legitimacy over bastardy. However, none of the judgments related to bigamy provide any financial help (succession and maintenance) to the second wife. This raises a question as to why the second wife neither gets any share in the property nor has any ‘clear’ maintenance rights. Prima facie, it might seem that even the second wife should be given succession and maintenance rights. However, the author argues that the second wife should be provided with maintenance and not succession rights till the second wife remarries.
To this effect, the author would present two main reasons in the backdrop of the conflict between HSA and HMA in case of succession to a second wife. First, it would elaborate on the effect of bigamy on the wives, husband, and society. Second, it would explain the reasons for providing maintenance rights over succession rights.
The Conflict Between HSA and HMA
The Hindu Women’s Rights to Property Act (‘HWRPA’) was the first legislation to have recognised the rights of a widow. During this time, polygamy was still a prevalent practice and resultantly, Section 3(1) of HWRPA provided that ‘all his widows together’ should get an interest in the husband’s property. HWRPA was repealed by the HSA but it retained a similar provision in section 10 that allowed all widows to have a share in the property. However, HMA declared bigamous marriage as void u/s 11. This created a conflict between Section 10 of HSA and Section 11 of HMA. While HSA allowed all the wives to enjoy succession rights, HMA declared the second marriage to be void without providing any rights to the second wife. Another fact to keep in mind while interpreting was that HSA was passed after HMA. So, even when HMA explicitly declared bigamy to be void, it can be argued that HSA being passed after HMA should give succession rights to all wives. Further, it can be argued that HSA being a special law on succession should prevail over HMA because of the generalia specialibus non derogant (special law will prevail over general law). However, the courts have explicitly rejected the provision of any property after the death of the husband. The author submits that the position taken by the courts in succession cases of a second wife is legally sound. In pursuit of this, the author would discuss the social costs and effect of non-succession rights to the immediate stakeholders.
Social Costs of Bigamy
The reason for prohibiting bigamy is to prevent an increase in sexual assault, disorder and violence in the society. This is because with a male favouring gender ratio, men marrying two women would lead to an increase in the unmarried male population. Resultantly, their aim to fulfil their sexual needs would disrupt society’s peace and order. Further, the bigamous family would have a number of conflicts which would affect the children and would go against their best interest as provided in the Convention on the Rights of the Child, Article 3. This instability would adversely impact the entire society. Family is the basic unit that builds the society and economy and with an unstable family, the basic unit itself would shatter. Further, this could be seen because of the decreasing number of countries which currently allow bigamy, most of which are Islamic countries.
Effect of Non-Succession to the Immediate Stakeholders
The most serious impact of the author’s arguments would be on the immediate stakeholders in a bigamous relationship. This makes it important to discuss this argument from their perspective. It is well known that if the second wife is provided with rights, then this would come at the cost of the first wife’s share. This is because as seen in HSA, the share of all wives together is a fixed fraction. Moreover, for the first wife, the reduction in share comes with society’s belief of not being able to take care of the husband. Hence, it is important to balance the interests of the first wife when giving rights to the second wife.
Additionally, with no succession rights, the second wife would take due diligence to ensure that the man is not already married. However, it is agreeable that in most cases, the woman has no means to gather information about her husband’s prior marriage. The problem further exacerbates as in most cases the second wife becomes financially and socially dependent on her husband during the cohabitation. Hence, it is for this reason that the maintenance rights be granted to the second wife.
Section 25 of HMA allows either spouse to procure a declaration of nullity from the court which entitles the wife to maintenance. The SC has applied this interpretation in the case of Ramesh Daga. However, in a void marriage, usually, the parties fail to get this declaration. Resultantly, the court could not provide maintenance under Section 25. In such a situation, the author argues that the second wife should always procure a declaration of nullity from the courts. Further, this declaration would be helpful not just for maintenance but as a precautionary proof for any future troubles on the question of the legitimacy of the marriage.
Another way to claim maintenance is through Section 125, the Code of Criminal Procedure (CrPC). S 125 provides for the maintenance of the wife, children and parents. However, the SC in Yamunabai v. Anantrao provided no maintenance rights to the second wife u/s 125, CrPC. The court held that the word ‘wife’ as used in this section is only applicable to legally wedded wives. Further, there has been a lack of explicit mention of the second wife’s maintenance. The court’s position shows the unjust and unfair treatment given to the second wife. As a result, to ensure justice and maintain equity, the author argues that ‘wife’ under Section 125(1) should not only mean legally wedded wife but should be expanded to include any wife who has been living with the husband for a considerable amount of time.
Further, the maintenance rights not only resolve the financial stability of the second wife but also provide another advantage over succession rights. This benefit lies in the difference between the nature of succession and maintenance. The succession rights are provided after the death of the husband and would not affect the current behaviour of the husband. On the contrary, maintenance is an expenditure from his current income. The reduction in the current income would act as a disincentive to marry a second wife and would prevent bigamy. Moreover, the right of maintenance should be limited to re-marriage because after the marriage the legitimate husband would maintain the wife. As a result, the second wife should be provided maintenance u/s 125 of CrPC or procuring a declaration of nullity u/s 25 of HMA.
Conclusion
Over the years, women have continually been subjugated and overpowered by men. This subordination is conspicuous in familial disputes. Similar discrimination was seen where men were allowed to marry multiple times. [4.] This has specifically impacted the second wife who currently is not given any monetary or non-monetary assistance. Through this piece, the author has argued to cure this discrimination by the provision of maintenance rights to the second wife till re-marriage. This can be claimed either u/s 25 of the HMA by providing a decree of nullity or u/s 125 of the CrPC by including second wives under the word ‘wife’.
In instances where the exact essential ceremonies could not be proved, a second marriage should be considered void instead of being declared a no-marriage. The argument is made so as to maintain a balance between the first and the second wife rights without unduly depriving any of them. The provision of maintenance would act as a financial burden on the husband’s current income and would ensure that bigamy is prohibited not just in law but also in practice.
Footnotes
[1.] 23 SIR DINSHAW FARDUNJI MULLA, HINDU LAW 1290 (LexisNexis 2013).
[2.] Virasami v. Appasami, (1863) 1 Mad HC as cited in Mulla.
[3.] 20 SIR DINSHAW FARDUNJI MULLA, PRINCIPLES OF MOHAMMEDAN LAW 383 (LexisNexis 2017).
[4.] PATRICK OLIVELLE, MANU’S CODE OF LAW 109 (OUP 2006).
The author is a student from National Law School India University, Bangalore.
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